How likely is a successful appeal to the proportionality test after automatic loss of Dutch citizenship?

_{By Mirjam den Besten}

In 2019 and 2020, the Court of Justice of the European Union (CJEU) and the Administrative Jurisdiction Division of the Council of State (ABRvS) ruled on the automatic loss of Dutch citizenship. You can, for example, lose Dutch nationality if you live outside the EU as a dual national for more than 10 (currently 13) years and do not renew your Dutch passport in time or if you voluntarily adopt another nationality and cannot rely on an exception to retain Dutch nationality. A realistic possibility to regain Dutch citizenship is through an option procedure after a stay in the Netherlands for at least 1 year with a residence permit for a non-temporary purpose. However, not everyone can simply move to the Netherlands.

From 1 April 2022, it is also possible to submit an option request from abroad to regain Dutch nationality. You must then be able to demonstrate that due to the loss of Dutch citizenship you also lost the status of EU citizen and were disproportionately affected in the exercise of your EU rights. How does this ‘proportionality test’ work exactly, which factors are important and is it realistic to regain Dutch citizenship in this way?

The proportionality test

An option request is submitted to a Dutch embassy/consulate abroad (sometimes at a municipality in the Netherlands). Applicants must provide documentary evidence that the loss of Dutch citizenship in their specific case was disproportionate. The test only takes into account any disproportionate consequences at the ‘moment of loss’, i.e. the date on which Dutch citizenship was lost (and a period of six months around the date of loss). The Immigration and Naturalization Service (IND) in the Netherlands gives a positive or negative advice on the case.

The first question the IND asks is whether you were exercising your EU rights at the time of loss, or whether it was reasonably foreseeable that you would exercise your rights as an EU citizen in the future. For example, you were living, working or studying in an EU Member State at the time of loss, or you can demonstrate that you wanted to live, work or study in the EU.

_{If you automatically lost your Dutch citizenship a long time ago – for example on 1 January 1995 – but you cannot demonstrate that you used or wanted to use your rights as an EU citizen at that time, then there is no point in applying for a proportionality test. It is not relevant that you can demonstrate that the loss of EU citizenship currently has major consequences for you. After all, your current situation will not be taken into account, unless you have lost Dutch citizenship very recently. What also plays no role in the proportionality test is the connection you may feel with the Netherlands or whether you master the Dutch language.}

Only after a positive answer to the first question will the IND continue with the second question, namely whether the loss of Dutch nationality (and therefore EU citizenship) prevented you from exercising your EU rights. For example, because on/around the loss moment you could no longer live, work or study in the EU because you lost your status as an EU citizen (and all the benefits associated with it). If you had to interrupt your studies in the EU because you suddenly had to pay high tuition fees as a non-Union citizen for example, or your job offer was withdrawn because your employer in the EU only wanted to hire an EU citizen.

_{If you could easily have traveled/travel to the EU (for example because you are visa-free) and/or you could have obtained/obtain a residence permit here without much difficulty, the IND will not quickly come to the conclusion that the loss of EU citizenship in your specific case was disproportionate. It is of course possible to lodge an appeal if the application is rejected and you believe that you have been disproportionately affected.}

If both of the above questions are answered affirmatively, the IND will issue a positive advice. If one question or both questions are answered negatively, a negative advice will be issued. The IND’s advice is practically always adopted by the Ministry of Foreign Affairs/the municipalities. If a positive decision in your case is made, you will regain Dutch citizenship with retroactive effect to the moment it was lost. Under certain conditions, minor children can share in their parent’s procedure to regain Dutch citizenship.

Facts and numbers

In July 2023, the IND published the report: ‘Implementation test Tjebbes’ on the feasibility of the proportionality test. This report shows that, from the moment of the CJEU ruling the IND in 2019 to July 2023 ruled that the automatic loss of Dutch citizenship was disproportionate in only 4% of the almost 800 registered requests for advice. These are just 32 positive opinions! 10 of these were issued in cases of clients of Everaert Advocaten. Jan was the first person to regain his Dutch citizenship on this ground (see this blog).

According to the IND report, in 90% of the cases the loss was judged to be proportionate. It is therefore not surprising that many former Dutch citizens wonder whether it makes sense to ask for a proportionality test in an option procedure. In many cases we do advise against this. The loss of Dutch citizenship often occurred too long ago and/or the former Dutch national cannot produce (suitable) documents.

Successful cases

Despite the disappointing figures, an appeal to the proportionality test has been successful in some cases. A common feature in the positive cases of our office is that the loss of Dutch nationality, and therefore EU citizenship, had occurred recently, a few months to a few years ago. In addition, all former Dutch nationals could demonstrate that they were already making use of their EU rights at the time of loss. For example because they lived, worked or studied in the EU, or already had concrete plans at the time of loss to make use of their EU rights (like they had written to educational institutions for a study in the EU). The table below shows which factors played a role in the cases of these former Dutch nationals and how they were affected by the loss of EU citizenship:

In only 40% of the positive cases from our office, the former Dutch nationals actually resided in the EU at the time of the loss (or in the United Kingdom during the Brexit transition period). The other 60% lived outside the EU but could demonstrate that – at the time they lost Dutch citizenship – it was reasonably foreseeable that they would exercise their rights as Union citizens in the future. It is also striking that in 40% of the cases incorrect information was provided by the Dutch authorities, causing the people in question to think they were still Dutch or, on the contrary, thought they had already lost Dutch citizenship. According to case law, errors by the Dutch authorities should weigh heavily in the proportionality test.

Conclusion

From the practice of the proportionality test, the conclusion can currently be drawn that there is in any case no point in requesting this test if:

• you have no (or very little) evidence of your ties with the EU;
• you do have supporting documents that show that you want to exercise your EU rights at this time (and not at the time of loss);
• you only have proof of ties with the Netherlands (such as speaking the language, emotional connection);
• you had another EU nationality at the time of loss or;
• you lost your Dutch citizenship before 1 November 1993 (because Union citizenship has only existed since that date).

A proportionality test (possibly) makes sense if you have recently lost Dutch citizenship and you also have supporting documents showing that you exercised/wanted to exercise your EU rights at the time of loss (for example, an application for a study in France; a job offer in Belgium, etc.). You must also be able to demonstrate that the loss of your Union citizenship prevented you from exercising those EU rights.

It is also possible to rely on the proportionality test if you lost Dutch citizenship some time ago, but then you must have convincing evidence showing that you made use/wanted to make use of your rights as a Union citizen at the time of loss. These are often missing in practice.

There may be a new option procedure in the future for former Dutch nationals who lost Dutch citizenship after 1 April 2003 on the basis of the 10-year (currently 13-year) loss period. You can read more about that here. If you have any questions about (loss of) Dutch citizenship, please contact us.